Was Miley Cyrus’ 'Abortion Is Healthcare' Cake A Rip-Off?

Miley Cyrus was recently accused of stealing the intellectual property of a DC-based baker, Becca Rea-Holloway. In particular, Cyrus posted a photograph on Instagram featuring a cake with the inscription “Abortion Is Healthcare” resembling one designed by Rea-Holloway.

People noticed the similarity, expressed outrage and started commenting, complaining and tagging Rea-Holloway’s Instagram handle, thesweetfeminist, in response to Cyrus’ image. Feeling tried and found guilty in the court of public opinion, Cyrus posted an apology on both Cyrus’ and Rea-Holloway’s posts, provided a photo credit to Rea-Holloway, as well as a tag to her Instagram page. Not satisfied, Rea-Holloway told the Washingtonian that she has reached out to Cyrus’ representatives seeking additional redress. “Compensation would be ideal,” she said. “But definitely public recognition.” The question is: In the eyes of the law, did Cyrus actually steal anything or otherwise violate Rea-Holloway’s rights?

According to Tal Benschar, Partner at Springut Law PC, “Many people do not realize that copying is allowed, and indeed encouraged, unless there is a specific law that prohibits it.” The U.S. Supreme Court echoed that position stating:

[I]n many instances there is no prohibition against copying goods and products. In general, unless an intellectual property right such as a patent or copyright protects an item, it will be subject to copying. As the Court has explained, copying is not always discouraged or disfavored by the laws which preserve our competitive economy. Allowing competitors to copy will have salutary effects in many instances.

Traffix Devices, Inc v. Marketing Displays, Inc., 532 U.S. 23 (2001)

Rea-Holloway feels aggrieved but precisely what did Cyrus allegedly rip off? Rea-Holloway said she was shocked when she saw Cyrus' post, pointed to the clear similarities, but did not specify what legal rights she believes Cyrus infringed. I see three possibilities, namely, Rea-Holloway’s rights, if any, relating to:

ownership of the photograph;

the phrase “Abortion Is Healthcare”; and

the design of the cake itself.

Let's review the possibilities, one at a time.

In January, model Gigi Hadid was sued for copyright infringement for uploading to Instagram a copyrighted image of herself without the permission of the agency that owned the photograph. And last month, a photographer sued singer Ariana Grande after she posted two of his photos of her on Instagram without his permission. However, in this case, Rea-Holloway is making no allegation that she took the photograph of Cyrus licking the cake or that ownership of the photograph was somehow sold, transferred or assigned to Rea-Holloway. So I do not believe Cyrus’ photograph itself violates Rea-Holloway's copyright rights.

Words and short phrases, such as names, titles, and slogans, are uncopyrightable because they contain an insufficient amount of authorship. The Office will not register individual words or brief combinations of words, even if the word or short phrase is novel, distinctive, or lends itself to a play on words.

U.S. Copyright Office Circular 33 - Works Not Protected by Copyright

As a result, the short phrase “Abortion Is Healthcare” is unlikely to be eligible for copyright protection.

Finally, similar to an artistic sculpture, cakes are potentially protectable by copyright law if they contain original elements of expression. However, the cakes in both Cyrus’ and Rea-Holloway’s images do not appear to embody any original elements. They both look like ordinary generic cakes. So I do not believe Rea-Holloway would be able to successfully claim infringement of her cake as an original artistic expression.

When these issues have been litigated previously, federal courts have consistently applied the foregoing interpretations of copyright law. Consequently, in my opinion, Cyrus was kind to apologize and provide attribution but, legally, does not have to compensate or otherwise seek Rea-Holloway's Forgiveness and Love.